Flu Season Is Approaching, Should You Require Employees to Get A Flu Shot?

In light of the COVID-19 pandemic, getting a flu shot this year is even more important than it has been in the past. (If you don’t believe me, talk to the CDC.) 

Does this mean that employers should require all their employees to get flu shots? The short answer is NO. 

As of this moment, there is no federal or state law (in Louisiana that is) requiring all employers to compel all their employees be vaccinated for the flu. In fact, both the ADA (for persons with disabilities) and Title VII (for sincerely held religious beliefs) provide exceptions that would allow an employee to refuse to be vaccinated. Rather than require vaccinations, the EEOC has stated that “ADA-covered employers should consider simply encouraging employees to get the influenza vaccine rather than requiring them to take it.” (Guidance) This Guidance was initially issue by the EEOC in 2009 and it was recently re-issued in March of this year. 

This means that although most employers can strongly recommend that employees be vaccinated for the flu, they would also be required to go through the accommodation analysis required by the ADA and Title VII if an employee asked to be excused from the vaccination as an accommodation.  

Healthcare Workers: While the reasonableness of a healthcare worker’s request to not be vaccinated would be held to higher scrutiny, especially in the case of one who provides direct patient care, the general analysis under the ADA and Title VII will be the same. The existence of a state or local law or administrative guidance recommending vaccinations for healthcare workers and the worker’s direct contact with patients will play into the reasonableness, or lack thereof, of the employees request to not be vaccinated. 

Employers should ensure that their requests, or mandates as the case may be, that employees be vaccinated are based upon the best available guidance: refer to the CDC and EEOC publications above, and the worker’s specific job duties. Whatever policy you land on needs to be clearly communicated to your employees and your supervisors must be trained to respond to employee requests to be exempt from vaccinations. (This should generally entail spotting the issue and immediately reporting it to HR for the appropriate analysis.) And, in the context of all of this communication and analysis, the employee’s medical information should be kept confidential.

Does State or Federal Law Require Me to Allow Employees Time Off of Work to Vote?

For most private employers, the answer is NO, there is no state or federal law requiring you to allow employees to miss work in order to vote in state or federal elections. 

vote clipart - Clip Art Library

Louisiana does have a state statute that generally prohibits employers with twenty or more employees from interfering with an employee’s ability to participate in politics. Specifically, LSA-R.S. 23:961 states that: 

Except as otherwise provided in R.S. 23:962, no employer having regularly in his employ twenty or more employees shall make, adopt, or enforce any rule, regulation, or policy forbidding or preventing any of his employees from engaging or participating in politics, or from becoming a candidate for public office. No such employer shall adopt or enforce any rule, regulation, or policy which will control, direct, or tend to control or direct the political activities or affiliations of his employees, nor coerce or influence, or attempt to coerce or influence any of his employees by means of threats of discharge or of loss of employment in case such employees should support or become affiliated with any particular political faction or organization, or participate in political activities of any nature or character. 

Any individual person violating the provisions of this Section shall be fined not less than one hundred dollars nor more than one thousand dollars, or imprisoned for not more than six months, or both; and any firm, corporation or association violating the provisions of this Section shall be fined not less than five hundred dollars nor more than two thousand dollars. 

One “clever” employer recently asked if it could allow only those employees that it believed to belong to a certain political party off of work in order to vote next Tuesday. We explained that doing so could very possibly constitute a violation of LSA-R.S. 23: 962, in addition to creating an extremely bad optic for the business.

The bottom line: If early voting numbers are any indication, this will probably be one of the largest voter turn outs in modern history. Although employers have no legal obligation to allow employees off of work in order to vote, realistically many employees are going to miss some work to do so. It would be a good idea to decide how you are going to respond to those situations and to inform your managers of the company voting policy. You do not want to find yourself in a situation where workers are allowed time off to vote depending upon their perceived political affiliation.

The CDC Re-Defines “Close Contact”

Under the old Guidance, Close Contact was someone who had been within 6 feet of a COVID-19 positive person for 15 minutes or more.

Under the new Guidance, Close Contact is “Someone who was within 6 feet of an infected person for a cumulative total of 15 minutes or more over a 24-hour period starting from 2 days before illness onset (or, for asymptomatic patients, 2 days prior to test specimen collection) until the time the patient is isolated.”

On Wednesday, the CDC issued a new Guidance that expands the definition of “close contact” for purposes of exposure to COVID-19.

As you probably recall, the CDC has generally recommended that anyone having Close Contact with a COVID-19 positive individual stay home for fourteen (14) days after their last contact with the COVID-19 positive person.

I do not know what practical impact this new Guidance will have on the average person going about their daily business; I suspect not much. However, this expansion may significantly impact the application of Act 336. You will recall from my prior updates that Act 336 limits liability for civil damages for injury or death resulting from exposure to COVID-19: “…unless the person, government, or political subdivision failed to substantially comply with the applicable COVID-19 procedures established by the federal, state or local agency which governs the business operations and the injury or death was caused by the person’s, government’s, or political subdivision’s gross negligence or wanton or reckless misconduct.”

Although we don’t yet have any reported cases interpreting this aspect of the Act, it is almost certain that the new CDC Guidance will constitute a “procedure established by a federal agency” with which we must comply in order to enjoy the protections of Act 336. As you can see, this Guidance will significantly expand the scope of employees that you send home to self-quarantine for 14 days after exposure to COVID-19.

The CDC has not established procedures for tracking an employees’ cumulative exposure to COVID-19 over a 24-hour period. As an HR professional, I would alter both my written policies and my practices to incorporate this new. Showing that you made a good faith effort to comply with the Guidance may be a critical piece of evidence one day.

DOL Announces Revisions to FFCRA That Will Seriously Impact Healthcare Providers

On September 11, 2020, the U.S. Department of Labor’s Wage and Hour Division (WHD) announced revisions to regulations that implement the paid sick leave and expanded family and medical leave provisions of the Families First Coronavirus Response Act (FFCRA). Most significantly, the revised rule will require healthcare providers to provide FFCRA protected/paid leave to a broader range of employees than previously believed. The revisions also clarify other employers’ responsibilities regarding FFCRA paid leave. The revisions were issued in response to the U.S. District Court for the Southern District of New York’s August 3, 2020, decision invalidating portions of the FFCRA regulations and are slated to go into effect on September 16, 2020. You can read the revisions here: https://www.federalregister.gov/documents/2020/09/16/2020-20351/paid-leave-under-the-families-first-coronavirus-response-act In short, the revisions:

  1. Health Care Provider Definition Narrowed:
    • The FFCRA permits employers to exclude “health care providers” from the Act’s leave benefit provisions. The DOL initially defined the term broadly, excluding from FFCRA coverage “anyone employed at any doctor’s office, hospital, health care center, clinic, post-secondary educational institution offering health care instruction, medical school, local health department or agency, nursing facility, retirement facility, nursing home, home health care provider, any facility that performs laboratory or medical testing, pharmacy, or any similar institution, employer, or entity.” as well as any individual employed by an entity that contracts with any of these institutions, as well as anyone employed by any entity that provides medical services, produces medical products, or is otherwise involved in the making of COVID-19 related medical supplies.
    • The New York Federal Court struck down this definition as too expansive. In response, the DOL has narrowed the exclusion to essentially track the definition provided in 29 CFR 825.102. Generally, this only includes those individuals capable of providing health care services, which include “diagnostic services, preventive services, treatment services, or other services that are integrated with and necessary to the provision of patient care,” or otherwise meet the definition of the term found in the Family Medical Leave Act (FMLA). The FMLA definition includes “doctors of medicine or osteopathy” authorized to practice in their state or other medical professionals such as podiatrists, dentists, clinical psychologists, optometrists, many chiropractors, nurse practitioners, nurse midwives, clinical social workers, physician assistants, and other similar professionals.
    • Under the new rule, employers may also elect to exempt nurses, nurse assistants, medical technicians, and laboratory technicians who process test results as health care providers.
    • The revision also offers guidance on the type of employee who may not be exempted as a healthcare provider: information technology (IT) professionals, building maintenance staff, human resources personnel, cooks, food service workers, records managers, consultants, and billers. The revised rule states that while the services provided by these employees may be related to patient care – e.g., an IT professional may enable a hospital to maintain accurate patient records – they are too attenuated to be integrated and necessary components of patient care.
  2. Work Availability Reaffirmed. This revision reaffirms that paid sick leave and expanded family and medical leave may be taken only if the employee has work available from which to take leave. In other words, if there is no work available, the employee is not entitled to protected leave. This applies to all qualifying reasons for paid sick leave and expanded family and medical leave.
  3. Employer Permission Still Required for Intermittent Leave. The revision confirms that an employee must obtain employer permission in order to take paid sick leave or expanded family and medical leave intermittently under Section 825.50. If the employer refuses to approve the request, leave may not be taken intermittently.
  4. Documentation Timing Clarified. Initially, the DOL indicated that employees must provide the required documentation prior to taking leave. The revision clarifies this point, and establishes that employees must merely provide required documentation as soon as practicable.

DOL Issues Three New Q&A’s Regarding FFCRA School Leave

Those of you who are keeping up with the pronouncements of our federal government regarding an employer’s obligations under the Families First Coronavirus Response Act are aware that there are still some questions outstanding. Yesterday the DOL answered three of those questions when it issued Q&A’s 98, 99 and 100. (You can find the Q&A’s here https://protect-us.mimecast.com/s/_ACiCERPgZCW49OkTNCJIo?domain=dol.gov).

Specifically, the DOL indicated that:

98. If a child’s school requires the child to alternate between in-person and remote-learning on a day-to-day basis, the parent is entitled to take FFCRA leave on the days that the child is required to remote-learn, assuming that other requirements of the Act are met.

99. If a school gives parents a choice between remote or in-person learning, the parent may not take FFCRA leave if they choose to have their child remote-learn, even if the parent did so out of fear that the child would contract COVID-19.

100. A parent may take FFCRA leave even if a school is utilizing remote-learning on a temporary basis and intends to open to in-person schooling in the near future.

None of these Answers prohibit an employer from allowing an employee to take leave when it is not required by the FFCRA. However, if an employer does so, it should not deduct that leave from the employee’s FFCRA leave “bank” or utilize the tax deduction allowed by the FFCRA for that additional leave.

Be Careful If You Allow Employees to Give Paid Leave to Each Other

Due to the pandemic some of your employees may have exhausted their paid leave and be in desperate need of more. Some of your other employees may have a surplus of accrued paid leave and want to assist their less-fortunate co-workers. While you can technically allow employees to “give” accrued paid leave to each other, the IRS says that you have to jump through some hoops if you don’t want the donor employees to take an unnecessary tax hit.  

IRS Notice 2006-59 addresses this issue. You can find the Notice here: https://www.irs.gov/pub/irs-drop/n-06-59.pdf. The IRS also recently also published a brief Q&A addressing such plans related to the COVID-19 pandemic. You can find the Q&A here: https://www.irs.gov/newsroom/leave-sharing-plans-frequently-asked-questions  

If the employer follows the IRS Notice, the employee who gives leave under such a plan will not have to include the donated leave in her income or wages. Conversely, the employee who receives the “given” paid leave will be taxed on the amount that she receives. Unfortunately, the employee giving the leave may not claim an expense, charitable contribution, or loss deduction for the amount of leave given. Please note that I said that this works “If the employer follows the IRS Notice.” If you fail to do so, your employees will face some unexpected taxes on the paid leave that they “gifted.”  

I would recommend that you refer to Notice 2006-59 if you are considering implementing such a leave-sharing plan. I have summarized some of the key criteria below:  

  • The plan must allow a leave donor to deposit accrued leave in an employer-sponsored leave bank for use by other employees who have been “adversely affected by a major disaster” as defined by the Notice.
  • The plan cannot allow a leave donor to deposit leave for transfer to a specific leave recipient. (This has been a major point of contention with the plans that I have assisted clients to implement. Most employees want to give leave to a particular co-worker, not to all eligible co-workers in general. Consider this before you spend your time and money drafting a plan.)
  • An employee cannot take more leave in a year than the maximum amount that she accrued in the year.
  • A leave recipient must use this leave for purposes related to the major disaster.
  • The plan must have a reasonable limit on the period of time that leave may be deposited and received from the bank.
  • A leave recipient cannot convert leave received into cash. (This is another common point of contention.)
  • The employer must make a reasonable determination, based on need, as to how much leave each approved leave recipient may receive under the leave-sharing plan. (Ouch! This will undoubtedly lead to cries of favoritism.)
  • Leave deposited on account of one major disaster may be used only for employees affected by that major disaster. (If you implement a plan for COVID-19, it could not also be used for our next hurricane.)
  • Unused leave must be returned to the donor.

 Don’t hesitate to call me directly if you have any questions or would like assistance in drafting and implementing your own COVID-19 Leave Sharing Plan. 

New York Court Vacates Four Provisions of the FFCRA Final Rule

Earlier this week a federal court in New York vacated four key provisions of the U.S. DOL’s Final Rule implementing the Families First Coronavirus Response Act.  In April, the State of New York sued the DOL claiming that the DOL had exceeded its statutory authority in a way that denied FFCRA leave to eligible employees. The District Court largely agreed with the state of New York and vacated four provisions of the DOL’s Final Rule. Specifically, the Court vacated the provisions: 

  1. That employees are only eligible for paid FFCRA leave where the employer had work available (This opens the door for furloughed and laid-off employees to make claims for FFCRA paid leave); This could be huge.
  2. Defining healthcare providers that can be declared exempt from the protections of the FFCRA. (This would eliminate a health care provider’s ability to exempt it’s employees from the FFCRA.); 
  3. That employees may only take intermittent leave for certain reasons if their employer consents. (This would allow employees to take intermittent leave to care for a child without employer permission.); and
  4. That employees must provide documentation before taking FFCRA leave. (Employers would still be able to require documentation, just not before the employee began leave.)

 Before you start pulling your hair out, we do not know if or how this ruling will impact those of us blessed to live and work in the Fifth Circuit. This ruling was issued by the United States District Court for the Southern District of New York. Rulings of this Court will ordinarily not be binding on the Federal Courts of Louisiana. However, we can expect similar suits to be filed in other jurisdictions. Of course, if you employ employees in the jurisdiction of the Southern District of New York, this ruling will be controlling if it stands.     It is very likely that the DOL will either appeal this judgment on you or amend its Final Rule in such a way to make it compliant with this ruling. In the meantime, employers should make themselves familiar with this ruling and determine what, if any, steps they should take. You can read the opinion here:  https://www.fmlainsights.com/wp content/uploads/sites/813/2020/08/State-of-NY-v.-USDOL.pdf  I will track the progress of this case through the inevitable appeals process and keep you informed. As always, call me if you have any questions.

DOL Issues New Q&As

In July, the DOL issued a couple of new Questions and Answers regarding the FMLA. One of them addresses the issue of whether a remote or telemedicine visit with a health care provider can qualify as an “in-patient” visit. As a rule, in order for a condition that does not require in-patient care to qualify as a serious health condition one must receive in-person treatment by a health care provider.  

29 CFR Section 825.115(a)(3) provides: 

(3) The requirement in paragraphs (a)(1) and (2) of this section (which require ‘treatment by a health care provider’) for treatment by a health care provider means an in-person visit to a health care provider.  

Since the regulations clearly require an in-person visit, my initial thought was that the answer to this question would be “No.” Well, I was wrong.  Q & A number 12 states: 

12. Due to safety and health concerns related to COVID-19, many health care providers are treating patients for a variety of conditions, including those unrelated to COVID-19, via telemedicine. Telemedicine involves face-to-face examinations or treatment of patients by remote video conference via computers or mobile devices. Under these circumstances, will a telemedicine visit count as an in-person visit to establish a serious health condition under the FMLA?

Yes. Until December 31, 2020, the WHD will consider telemedicine visits to be in-person visits, and will consider electronic signatures to be signatures, for purposes of establishing a serious health condition under the FMLA. To be considered an in-person visit, the telemedicine visit must include an examination, evaluation, or treatment by a health care provider; be performed by video conference; and be permitted and accepted by state licensing authorities. This approach serves the public’s interest because health care facilities and clinicians around the nation are under advisories to prioritize urgent and emergency visits and procedures and to preserve staff personal protective equipment and patient-care supplies.  

So, until at least December 31, 2020, remote or telemedicine visits that meet the requirements above will qualify as in-person visits under the FMLA.  All HR professionals who manage the application of their company’s FMLA program (and lawyers who think they know a thing or two about the FMLA), should make note of this change since it is going to expand the number of situations in which an employee will be eligible for FMLA leave.

Don’t Inadvertently Create COBRA Liability

As the COVID-19 crises continues, I am receiving more and more calls to assist businesses in downsizing, either through layoffs or significant reduction in hours.

There are so many moving parts in that process that it can be easy to lose sight of your obligations under COBRA, and that can lead to expensive mistakes. 

Both the Department of Labor and Internal Revenue Service have the authority to impose civil penalties if employers fail to provide compliant COBRA notices. The DOL can impose civil penalties up to $110 per day per person and the IRS can impose an excise tax of $100 a day per beneficiary and $200 a day per family, until employees receive an adequate notice.  

In addition, employers can face literally millions of dollars in damages in class action litigation. Just last week, a Fortune 500 company settled a class action lawsuit relating to deficient COBRA election notices for US$1.6 million dollars. More than two dozen class action COBRA notice lawsuits have been filed year to date, and we expect many more to be filed as the courts open up for business.  

You will notice that I refer to compliant, adequate and deficient notice. That is because merely providing notice is not enough; employers must provide the specific notice required in the Act.  

The COBRA notice requirements are fairly clear. An employer subject to COBRA is required to notify its group health plan administrator within 30 days after an employee suffers a qualifying event. Within 14 days of that notification, the plan administrator must notify the individual of his COBRA rights. If the employer is also the plan administrator and issues COBRA notices directly, the employer has 44 days to issue the COBRA notice.

COBRA election notices must be written in a manner calculated “to be understood by the average plan participant” and include: 

  • The name of the plan and the name, address, and telephone number of the plan’s COBRA administrator; (Several class action suits have been filed recently arguing that providing the general HR telephone number does not satisfy this element.)
  • Identification of the qualifying event;
  • Identification of the qualified beneficiaries (by name or by status);
  • An explanation of the qualified beneficiaries’ right to elect continuation coverage;
  • The date coverage will terminate (or has terminated) if continuation coverage is not elected;
  • How to elect continuation coverage;
  • What will happen if continuation coverage isn’t elected or is waived;
  • What continuation coverage is available, for how long, and (if applicable), how it can be extended for disability or second qualifying events;
  • How continuation coverage might terminate early;
  • Premium payment requirements, including due dates and grace periods;
  • A statement of the importance of keeping the plan administrator informed of any new addresses of qualified beneficiaries; and
  • A statement that the election notice does not fully describe COBRA or the plan and that more information is available from the plan administrator and in the summary plan description.

 Keep in mind that the use of a third-party administrator to issue COBRA notices does not mitigate an employer’s risk of noncompliance. You will be liable for the TPA’s failure. Ideally, employers should draft their agreements with their TPA’s to provide for indemnification of the employer for the TPA’s failure to comply with the current COBRA requirements.

If you act as your own plan administrator, the DOL has provided a model COBRA notice and considers use of the model notice to be good faith compliance with the general notice content requirements of COBRA.

As always, stay safe and don’t hesitate to call if you have any questions.

DOL Issues New Optional FMLA Forms

Last week the DOL announced that it was issuing new optional FMLA forms. You can find the announcement, and the forms, here. https://www.dol.gov/agencies/whd/fmla/forms

The new forms contain some subtle differences and, as I said, they are optional.

As always, keep in mind that you cannot require an employee who has already provided you with certification documentation to fill out the new forms nor can you even require an employee to use any certain forms. Per the DOL: “An employer must accept a complete and sufficient certification, regardless of the format. The employer cannot reject a certification that contains all the information needed to determine if the leave is FMLA-qualifying.”